The Chief Coroner’s latest Guidance on Covid 19 deaths in the Workplace

The Chief Coroner recently published further Guidance notes (No.37[1]) in relation to the COVID-19 pandemic. This specifically related to deaths arising from exposure in the workplace. Within hours of its publication the Guidance had come under fire with the shadow attorney general, Lord Falconer, expressing concern that the guidance “may have an unduly restricting effect on the width of inquests arising out of Covid 19-related deaths”[2] and Rinesh Parmar, the chair of the Doctors Association UK, quoted as saying: “The provision of PPE is so vital to the safety of health workers that to suggest coroners do not consider its supply in detail misses a big part of the picture. Only comprehensive inquests into the deaths of every NHS and care worker will give the bereaved the ability to ask questions and have the circumstances of their loved ones’ deaths fully explained.” However, are these concerns misplaced?

The Guidance observes that the vast majority of deaths from Covid-19 will be due to the natural progression of a naturally occurring disease and so will not be referred to the coroner. However, it rightly highlights Regulation 3(1)(a) of the Notification of deaths Regulations 2019 which provides that a doctor completing the cause of death documentation must refer a death where (s)he “suspects that the person’s death was due to…(ix) an injury or disease attributable to any employment held during the person’s lifetime”. Therefore, there will be instances where the virus may have been contracted in the workplace and will need to be reported to the coroner. Obvious examples will be deaths of frontline NHS staff as well as care home workers, emergency service personnel, public transport employees and other key workers.

The Guidance goes on to note that it is a matter for the coroner’s judgement in each case whether the facts and the evidence provide “reason to suspect” (a low threshold test) that the death was unnatural. That is, where it has resulted from the effects of a naturally occurring condition or disease process but where some human error contributed to death (R(Touche) v Inner London North Coroner [2001] QB 1206). Accordingly, the Guidance recognises, a death which is believed to be due to Covid-19 may require a coroner’s investigation and inquest in some circumstances. The examples provided by the Guidance relate to failures in clinical care, failures of precautions which have caused the deceased to contract the virus which caused/contributed to the death, as well as where the individual has died in state detention. The Guidance reminds Coroners that an inquest is not the right forum for addressing concerns about high-level government or public policy and states: “an inquest would not be a satisfactory means of deciding whether adequate general policies and arrangements were in place for provision of personal protective equipment to healthcare workers in the country or a part of it”. However, this does not and should not preclude consideration of the role played by the provision or absence of PPE if this more than minimally, negligibly or trivially contributed to death.

The timing of the Guidance is perhaps unsurprising. The number of those dying at the frontline from Covid-19 is a matter of grave public concern as is the growing evidence that adequate supplies of PPE have simply not been provided. We will have to see how Coroner’s choose to apply this guidance. As they are reminded, “Coroners make judicial decisions on a case by case basis” and “nothing in the Guidance should be taken as a statement of policy or an indication on the way that coroners should exercise their duties”. Coroners are also reminded that they have a wide discretion in relation to many aspects of their investigations and inquests. If they are to put the bereaved at the heart of the process it is hard to envisage questions about PPE properly being excluded from the scope of a workplace Covid-19 death. It may well be that in due course a Public Inquiry is ordered into the apparent inadequacies in the supply of PPE to frontline workers but until that time coroners must conduct a full and fearless investigation into all matters that they have reason to suspect caused or contributed to an unnatural death.

The Queen on the application of Carole Smith v HM Assistant Coroner for North West Wales v Betsi Cadwaladr University Health Board [2020] EWHC 781 (Admin)

In a judgment dated 7 April 2020 the Divisional Court (namely Dingemans LJ, Grifﬁths J and The Chief Coroner for England) made clear that:

1) The Coroner is not obliged to accept the evidence of any expert, including one commissioned by the Coroner, about causation or any other issue to be determined at the inquest; and

2) The record of inquest, even in Article 2 cases, is intended to be brief, factual and to deal only with the four statutory questions. It is not the purpose of the record of inquest to include every detail or criticism made of any party, though they may have formed part of the Coroner’s reasons.

The case related to the death of Leah Smith who hanged herself in April 2017 and died on 2 May 2017. The inquest considered, in great detail, the care she had received from the Betsi Cadawaldr University Health Board (“the Board”) between March and May 2017.

A serious incident review was carried out by the Board following LS’ death and found a number of failings, including:

The absence of a medical review led to no formal diagnosis for LS.

Over-cautious use of anti-psychotic medication.

Non-prescription of antidepressants for nearly a month.

Discharge from emergency department early hours of the morning, on one occasion without informing her partner.

Root cause: inadequate medical cover for home treatment team patients in the West.

The Coroner ruled that Article 2 was engaged and instructed a Consultant Forensic Psychiatrist, Dr Dignesh Maganty, to produce an expert report on issues which included the availability of/access to a consultant psychiatrist, diagnosis and medication/dosage.

Dr Maganty’s Report criticised the medical care given to LS in the period before her death, concluding that:

”Considering all the above, i.e. failure of provision of basic medical care, in my opinion, on the balance of probabilities, the death of Miss Leah Smith was not only predictable but was entirely preventable… If she had received appropriate antidepressant medication at an early stage, therapeutic doses of an appropriate antipsychotic at an early stage and received inpatient admissions/home treatment care as per good practice guidance with appropriate treatment at an early stage, on the balance of probabilities, it is likely that she would have made a good recovery.”

Dr Maganty gave evidence at the inquest and his evidence, it appears, was significantly challenged by the Coroner herself as well as by the Board. Amongst the concessions he made in evidence were:

His conclusion that Leah’s death was preventable was based upon the fact that his diagnosis of “severe depressive episode with psychosis” was treatable.

There is a difference between treatable and curable.

Whilst 99% of patients with that diagnosis do not take their own lives, some patients do suffer self inflicted deaths whilst treatment is ongoing.

The Coroner also heard evidence from the physicians involved in LS’ care, including a consultant psychiatrist who saw her 3 days before she hanged herself. Each physician explained the decisions they had taken.

At the conclusion of the inquest the Coroner gave 14 pages of detailed reasons analysing the evidence heard. The record of inquest state:

At Box 3- ”How, when and where, and… in what circumstances the deceased came by his or her death”

”On 28/4/17 the deceased was found hanging by the neck from a bannister at her home address. She was taken to hospital where she was placed on life support. Tests revealed no brain activity was evident and she sadly passed away on 2/5/17. The deceased had a short history of mental health issues with an attempted overdose a week prior to her death. She was receiving antipsychotic medication and was under the care of the Mental Health Services at the time of her death.”

At Box 4- “Conclusion of the Coroner as to the death”

“The deceased hung herself with a ligature on 28/4/17.This act caused her death. At the time she took this action it is likely that she was suffering from an episode of psychosis of unknown origin.”

The Claimants grounds for judicial review attacked every aspect of the inquest’s conclusions:

The decision erred in law as to the threshold for causation of death.

The decision erred in law as to the standard of proof for causation of death.

iii. The decision was irrational in its failure to accept the evidence of an expert, Dr Maganty, about causation of death.

The decision and Record of Inquest were not compliant with the requirements of an investigation under Article 2 of the European Convention on Human Rights .

The decision was irrational in failing to make a ﬁnding of neglect (permission was refused on this final ground).

Grounds 1 and 2- dismissed

The court emphasised that the correct test for causation is that found in in R (Tainton) v HM Senior Coroner for Preston and West Lancashire [2016] 4 WLR 157 at para 41: “…the question is whether, on the balance of probabilities, the conduct in question more than minimally, negligibly or trivially contributed to death.”

The Coroner had also considered the case of R (Chidlow) v HM Senior Coroner for Blackpool and Fylde [2019] EWHC 581 (Admin):

“general statistical evidence alone is, however, unlikely to be sufﬁcient. For example, even where the rate is over 50%, a raw survival rate for the group into which (without the relevant event or omission) the deceased is said to fall is unlikely to be sufﬁcient because, without evidence supporting the proposition derived from the population data, a jurycould not safely conclude that he or she would have fallen into the category of survivors.”

The Divisional Court could find no basis for overturning the Coroner’s conclusion that the death was not preventable. The court itself observed that Dr Maganty’s use of statistics was couched in general terms, which made it particularly difficult to use them in this case.

Ground 3- dismissed

In an argument which serves to remind all inquest parties to think carefully about submissions made at a pre-inquest review, the Claimant relied upon submissions from the Board (in discussing the need for Dr Maganty’s attendance) which stated “There is a report from Dr Maganty and the Trust accepts what is said by him and his conclusions…It is respectfully submitted that in those circumstances, there is no need for Dr Maganty to attend.”

The Divisional Court rejected this argument, noting firstly the context in which the submission was made, but more importantly that the inquest is an inquisitorial process and the Coroner is not bound to accept the conclusions of an expert, in particular where evidence subsequently given by the treating physicians undermined those conclusions.

In the court’s own view Dr Maganty’s conclusion that LS’ death was both predictable and preventable was stated “with great conﬁdence but based on a relatively insecure evidential foundation. When tested, his evidence on causation appeared to be little more than an assertion.”

Ground 4- dismissed

The Claimant’s argument was, in essence, that Box 3 and Box 4 of the record of inquest should have included more of the detail from her lengthy and detailed reasons. In particular these should have included criticisms that the Coroner had made of the care provided to LS.

The Divisional Court observed that

“Both the Reasons and the Record were delivered in public. Both, therefore, were part of the public record. The argument that more of what appeared in the Reasons should have been repeated in the Record has the appearance of an argument of form over substance and we would reject it on that ground alone.”

The court also had more “fundamental” objections to the Claimant’s proposals for Box 3 and Box 4, which read “more like a Statement of Case than the Conclusion (formerly known as the verdict) of a coroner’s inquest”. The Divisional Court could not “approve” the language proposed which included the following phrase: “She received inadequate care, below the level of basic medical care that a patient can expect to receive from a modern mental health service.”

The Claimant’s proposal was clearly contrary to the prohibition in Section 5(3) of the Coroners and Justice Act 2003, in expressing a view on any matter other than the four statutory questions. The Court repeated the observations in R (Jamieson) v HM Coroner for North Humberside and Scunthorpe [1995] QB 1 at 24B that : “It is not the function of a coroner or his jury to determine, or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame” and that of R (Smith) v Oxfordshire Assistant Deputy Coroner [2011] 1 AC that the conclusion in a Middleton inquest will include “conclusions of fact as opposed to expressions of opinion… Nor must the verdict appear to determine any question of civil liability”.

Mr A brought a claim in the Employment Tribunal alleging his employer – the Criminal Injuries Compensation Authority – was responsible for his numerous physical and mental ailments. Dr McLennan was instructed by the Ministry of Justice to provide an expert report into his condition. Her report was highly unfavourable to Mr A’s cause – noting he had sworn freely through the consultation, and describing his account as inconsistent and “tinged with mendacity” (deception). It transpired, however, A had made an illicit recording of the appointment which conflicted with Dr McLennan’s version of events. In rejecting A’s claim, the Employment Tribunal refused to attach any weight to this recording since A had elected to produce it late in the day and it had doubts over its authenticity. Subsequently, however, A made a referral to the GMC. Expert evidence demonstrated the recording had not been doctored or edited. As a result, the MPT found Dr McLennan’s report was inaccurate in numerous regards and – moreover – these mistakes had been motivated by dishonesty. She was erased from the Register and appealed to the Court of Sessions.

This appeal addressed a range of arguments. Counsel for Dr McLennan relied on the inherent unlikelihood that she would have acted in a dishonest manner, which the Tribunal did not engage with adequately. It was more probable any inaccuracy was the result of an honest mistake rather than a deliberate falsehood. It was unlikely that she would have “periled” her career for the sake of this report. Why would she? In this regard the Appellant placed significant weight on the wealth of character evidence provided. In addition, (s)he attacked the quality of the reasons produced by the Tribunal to justify its decision. The Court of Sessions dealt with these arguments robustly, rejecting each in turn.

Inherent unlikelihood

It found no assistance could be drawn from the “inherent unlikelihood” argument. It observed,

“there ought to be cogent evidence before dishonesty is found… However, the use of such axiomatic language does not detract from the general legal proposition that the test to be applied in determining whether a crucial fact, including dishonesty, is to be found remains the balance of probabilities… In approaching the exercise of deciding the critical issue, a Tribunal should keep an open mind, untinged by any preconceived general notions that dishonesty is less likely than not to have occurred or that it is inherently improbable, especially when the person accused is one of good repute.” [emphasis added]

The extent to which the courts consider the concept of inherent unlikelihood a helpful gloss to the standard of proof is controversial. Nonetheless, it is fair to say this decision struck a particularly strident tone. It rejected the whole concept. In doing so, it conflicted with numerous authorities. When the Tribunal in Okpara v General Council [2019] EWHC 2624 (Admin) summarised the position in this way, for example, the High Court endorsed it as an “impeccable direction”:

“we must also have in mind… to whatever extent is appropriate in this case is that the more serious the allegation, the less likely it is to have occurred, and, hence, the stronger the evidence should be before we conclude that the allegation is proved on the balance of probabilities. The more serious the allegation, the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.”

Surely, the Court of Sessions view went too far. In R (N) v Mental Health Review Tribunal (Northern Region) [2006] QB 468 the court put it well when it observed:

“Situations which make such heightened examination necessary may be the inherent unlikelihood of the occurrence taking place… if it is alleged that a bank manager has committed a minor peculation, that could entail very serious consequences for his career, so making it the less likely that he would risk doing such a thing. These are all matters of ordinary experience, requiring the application of good sense on the part of those who have to decide such issues.”

The bank manager’s peculation and Dr McLennan’s inaccurate report are on the same page. Both are inherently unlikely. Any evidence must be considered with that fact in mind. It is a matter of common sense that people are less likely to risk throwing away reputation, career and their profession for nothing.

Character evidence

The court was equally unimpressed by the wealth of character evidence relied on by Dr McLennan. It noted that the significance of such evidence will vary according to the facts of a particular case. Caution is required before giving it too much weight:

“The inquiry by a Tribunal into an allegedly dishonest act or other misconduct will, or at least should, focus on the act itself. The Tribunal will look primarily at the evidence which bears directly on whether or not the act occurred. It is important for a Tribunal not to be deflected from that task by delving too deeply into an individual’s professional or personal background. Although that individual may well be able to secure testimonials to his or her good character from amongst his or her close associates, it is unlikely that the opposing party, who is attempting to prove the allegation, will have either the time, resources or ability to delve into the individual’s past in an attempt either simply to refute the terms of such references or to secure evidence of a less than perfect past.”

The court applied the same logic to bad character evidence. It observed, again, the focus should be on the act itself, and not on such evidence “even if it had a direct bearing on whether the individual had a “propensity” to act in the manner alleged, that is not relevant to proof of the particular act.” It went on to add that:

“As a generality, those pursuing disciplinary proceedings should not be permitted to introduce evidence of general bad character as an element in the proof of dishonesty on a specific occasion. They are not to be encouraged to ingather evidence of bad character either to refute the terms of references, which might be, or have been, produced, or as an attempt to undermine either credibility or reliability. If it were to be otherwise, tribunal hearings would be greatly prolonged, and the tribunal could be deflected from its purpose, by parties addressing matters of peripheral, if any, significance. Although it may be legitimate to establish that an individual has no previous disciplinary record, since that is a matter which is usually readily ascertainable, there must be practical constraints on the extent to which a tribunal should otherwise permit evidence of either general good or bad character, when that character is not the gravamen of the complaint.” [emphasis added]

Again, the court appears to have taken a more strident approach to the issue of character evidence. It fits uncomfortably with cases like Donkin v Law Society [2007] EWHC 414 (Admin) where no criticism was made of the voluminous highly impressive character references produced to rebut the suggestion of dishonesty. Character currently forms an important element of any professional’s defence to an allegation of dishonesty. Surely, that is right. Cogent evidence of good character may well render it less likely – on the balance of probabilities – that a doctor acted dishonestly in a particular instance. In the same vein, if bad character evidence can be adduced against a doctor – without undue risk of satellite litigation delaying matters – surely such evidence is relevant and admissible? A person who acts dishonestly in similar circumstances is more likely to do so in the future.

Reasons

As to the quality of the reasons expected of a Tribunal, on the facts the court considered these were adequate in the instant case. Of note, however, it did provide this observation:

“The straightforward question for the Tribunal was whether, on the balance of probabilities, the allegation of dishonesty had been made out. It is no doubt correct to say that a finding of dishonesty requires careful reasoning. Almost all tribunal decisions do. The required quality of that reasoning remains that described in Wordie Property Co v Secretary of State for Scotland 1984 SLT 345 (LP (Emslie) at 348); being whether the decision leaves:

”… the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it”.

If there is a dispute on a critical fact, the resolution of which depends upon the oral accounts of witnesses, if the fact finder accepts one or more witnesses and rejects others, it will rarely be sufficient for the Tribunal merely to state the fact of acceptance or rejection. Some reason, albeit that it may be a short one, will almost always be required in the event of a challenge to the decision.”

This arguably marks a departure in tone at least from the view expressed in cases such as Southall v General Medical Council [2010] EWCA 407):

“For my part, I have no difficulty in concluding that, in straightforward cases, setting out the facts to be proved (as is the present practice of the GMC) and finding them proved or not proved will generally be sufficient both to demonstrate to the parties why they won or lost and to explain to any appellate tribunal the facts found. In most cases, particularly those concerned with comparatively simple conflicts of factual evidence, it will be obvious whose evidence has been rejected and why.”

It is perhaps not too much to ask for a Tribunal to provide some reasons to explain how it resolved conflicting evidence. Given the deference given to its findings of fact, it is perhaps frustrating that this justification will often come down to an assessment of demeanour – a notoriously unreliable barometer of honesty. But that is perhaps another matter.

We have all seen the respect – sometimes the undue respect – courts pay to expert evidence. In the criminal context, the Law Commission report of 2011 noted the danger “juries will abdicate their duty to ascertain and weigh the facts and simply accept the experts’ own opinion evidence… or may focus on perceived pointers to reliability (such as the expert’s demeanour or professional status)” – a criticism which applies with equal force to other forums. It is perhaps unsurprisingly then that the courts should be particularly unsympathetic when that respect is abused, as Dr Zafar found out to his cost.

Dr Zafar produced medical reports to assist with personal injury claims – more accurately he ran an expert report “factory”, churning out 5000 such reports a year. In respect of one claim brought against Victoria Insurance, he was asked by his instructing solicitors to revise his prognosis. He did so without re-examining the client, and where there was no clinical justification for doing so. Both the original report and the amended report were served by mistake and the discrepancy identified. When first questioned about this he lied and sought to cast the blame elsewhere. He then made further reckless statements to attempt to explain away the differences between the two reports. Following contempt of court proceedings brought by Victoria Insurance, he received a suspended prison sentence of six months. Victoria Insurance appealed this on the basis the sentence was inadequate.

The Court of Appeal agreed – Liverpool Victoria Insurance v Zafar [2019] EWCA Civ 392. Although it chose not to increase Dr Zafar’s sentence, it made very clear how serious such conduct was. The deliberate or reckless making of a false statement in a document would usually result in prison.

“In the case of an expert witness, the fact that he or she is acting corruptly and makes the relevant false statement for reward, will make the case even more serious; but it will be a serious contempt of court even if the expert witness acts from an indirect financial motive (such as a desire to obtain more work from a particular solicitor or claims manager), or without any financial motivation at all, and even if the expert witness stands to gain little financial reward by it. This is so because of the reliance placed on expert witnesses by the court, and because of the corresponding importance of the overriding duty which experts owe to the court.”

Whilst in principle, a reckless act was less culpable than a deliberate act, where expert witnesses were concerned this distinction was generally less significant:

“Without seeking to lay down an inflexible rule, we take the view that an expert witness who recklessly makes a false statement in a report or witness statement verified by a statement of truth will usually be almost as culpable as an expert witness who does so intentionally. This is so, because the expert witness knows that the court and the parties are dependent on his or her being truthful, and has made a declaration which asserts that he or she is aware of his or her duties to the court and has complied with them (see para 33 above). To abuse the trust placed in an expert witness by putting forward a statement which is in fact false, not caring whether it be true or not, is usually almost as serious a contempt of court as telling a deliberate lie.”

In this instance the sentence should have been significantly longer than six months and should have been immediate.

Unsurprisingly Dr Zafar’s conduct also brought him before the GMC. The allegations were framed on the basis of the judgment at first instance. However, shortly before the case was due to be heard the GMC indicated it wished to apply to admit the recent decision of the Court of Appeal. The defence objected and – somewhat surprisingly – and indeed for reasons unknown – the GMC agreed not to place this document before the Tribunal. Dr Zafar received an order of suspension.

The GMC appealed this decision, and was joined in this appeal by the PSA. Rather unpalatably, the GMC’s appeal rested, in part, on the fact the Court of Appeal judgment should have been placed before the Tribunal notwithstanding its own concession. It applied to admit this judgment as fresh evidence for the purpose of the appeal.

The court dismissed in short order the suggestion made on behalf of Dr Zafar that the Court of Appeal decision was irrelevant on the basis that it was for the Tribunal to make its own independent assessment of the seriousness of the conduct. Counsel for Dr Zafar then argued that nonetheless the court should not exercise its discretion to admit it. She noted that it did not satisfy the factors set out in Ladd v Marshall which required – inter alia – that the new evidence could not with reasonable diligence have been available at trial. Whilst the Ladd v Marshall factors were not determinative, she noted that in this instance the GMC had also agreed the evidence should not be relied on. The GMC should be bound by that agreement and not permitted to go behind it.

The court clearly was sceptical as to whether a publicly available judgment of this kind was “evidence” in the first place. Assuming it was, however, it noted that the PSA was not party to the concession and so could not be bound by it. On that basis alone the appeal would succeed. Moreover, Ladd v Marshall factors were trumped in this instance by public interest factors. As it observed:

“Were this what I might call “ordinary” civil litigation I would see the greatest force in such submissions… And parties to litigation should ordinarily, in the interests of finality, be held to their compromises, be they wise or unwise.

But this is not “ordinary” civil litigation. These are proceedings conducted in the public interest and with the object of protecting the public. That consideration does not, I agree, necessarily of itself displace the usual need to satisfy the Ladd v Marshall criteria. But it is certainly a factor relevant to the overall exercise of discretion… It seems to me that, in the circumstances of this particular case, that factor, taken with all the other circumstances, removes this case from some kind of norm.”

The only appropriate sanction was erasure:

“What he did, exploiting his position as a doctor and as an expert witness, struck at the very heart of the administration of justice and involved an abuse of the trust which the courts have to accord to experts. In my clear opinion, in all the circumstances the only proper sanction is erasure. In any event, even without the Court of Appeal decision, the only appropriate sanction was one of erasure.”

Indeed, the court commented erasure would be the inevitable result with or without the Court of Appeal’s judgment – a position is it hard to disagree with.

Practitioners and registrants alike spend a lot of time complaining about the inefficiencies of regulators, and the excessive length of time it takes cases to get through all the stages to a substantive hearing. But be careful what you hope for because if they were to speed things up, there is a group of registrants who could find themselves being struck off, when they otherwise might get no more than a suspension.

The problem has been illustrated again by GMC v Saeed [2020] EWHC 830 (Admin). Dr Saeed was convicted on 6th July 2018 of one count of controlling and coercive behaviour and one count of actual bodily harm committed against his wife. On 29th August 2018 he received a sentence of 22 months in prison, suspended for two years. On 12th June 2019, he was suspended for 12 months by the MPT. So his suspended sentence is due to run out on 28th August 2020, but his suspension – even with the help of the appeal period – would be up for review in mid-July 2020.

It is at this point that the principle in Fleischmann kicks in. The GMC appealed against the sanction not only on the basis that it was too lenient generally, but also because it meant the doctor might return to practise while still the subject of the suspended sentence. Fleischmann is the authority on that issue, and it is worth quoting the key passage [at 54] in full:

“I am satisfied that, as a general principle, where a practitioner has been convicted of a serious criminal offence or offences he should not be permitted to resume his practice until he has satisfactorily completed his sentence. Only circumstances which plainly justify a different course should permit otherwise. Such circumstances could arise in connection with a period of disqualification from driving or time allowed by the court for the payment of a fine. The rationale for the principle is not that it can serve to punish the practitioner whilst serving his sentence, but that good standing in a profession must be earned if the reputation of the profession is to be maintained.”

In Dr Saeed’s case, the MPT had ordered a review. So he argued that he would not necessarily return to practise in July 2020, as the reviewing tribunal could impose a further suspension. That would seem to be a pragmatic way of dealing with a case like this where the original tribunal did not want to strike the doctor off, but the operational period of the suspended sentence would not have run out.

However, as the court in observed, that is banned too, by Khan v General Pharmaceutical Council. The facts in Khan were a little different, in that the original panel struck the registrant off as it felt a 12-month suspension was not enough. On appeal the case was remitted for the tribunal to consider a “middle way” whereby a 12-month suspension would be imposed, which could then be reviewed in the expectation it would be extended. On further appeal it was held that this was not a legitimate use of a review. The purpose of a review was to consider the steps the registrant had taken to make him/herself fit for practise, not to achieve the correct sanction for the seriousness of the original case. The court applied Khan to Dr Saeed’s case although the tribunal had thought a twelve-month suspension was sufficient in his case, but needed 14 months to take the sanction beyond the operational period of the suspended sentence.

The principle in Fleischmann is not absolute. There is a discretion to impose a sanction which would end before the full resolution of the criminal matter, but the passage quoted above sets out the limited kind of situation where that might apply.

So what could Dr Saeed have done to avoid this? In his case nothing as the appeal was also upheld on the basis that the tribunal had not dealt with the strike-off factors in the Sanctions Guidance. Had the issue only been the suspended sentence, however, what if he had found some way of delaying the original hearing until it was within twelve months of the end of the suspended sentence?

It would be ethically problematic for a lawyer to advise a registrant to do so (overriding objective anyone?) but Dr Saeed was unrepresented and it is not clear anything in Good Medical Practice would have prevented him from doing it. Nor is it clear that a lawyer could not properly explain the consequences of such a course of action to him.

In some ways it is analogous to the situation in crime, where a defendant is required by law to produce a defence statement. The accepted ethical position is that the defendant’s representatives cannot advise him or her not to do the statement – that would be to advise law-breaking – but they can give advice on what a failure would entail (including the forensic tactical advantages) and the consequences of it. The representative must then advise the defendant to do a statement as the law requires it. If the defendant then declines to do a defence statement, the only sanction is the adverse inference that the jury can be invited to draw. The representative is not considered in any way professionally embarrassed by this.

If by analogy this can be applied in the regulatory context, the representative can explain the maths of the Fleischmann situation, and let the registrant work out what to do about it.

It is the arbitrariness of the Fleischmann principle that leads to consideration of such arcane manoeuvres. There could be a rule that any registrant sentenced to more than, say, a year in prison (suspended or not) should be struck off. That at least would be fair, as the length of a prison sentence is the result of a process of assessing the seriousness of the offence and the culpability of the perpetrator. Or the Fleischmann exceptions could be extended to cover the situation where the tribunal thought a year’s suspension would be enough, but the court has mandated a longer sentence. Either way, whether a registrant loses their career, or just a year of earnings, should not depend on the vagaries of when cases are listed. It is unsustainable that the business of a regulator’s hearing schedule may prove a more decisive factor, than the actual criminal sentence imposed.

Arguably Dr Saeed’s case represents a softening of the Fleischmann principle. Although the court found an apparent breach, the terms in which it was stated – that if a tribunal is to depart from the principle it “needs to have sound reasons to do so and set out its reasons clearly” – stopped short of saying Dr Saeed’s case clearly fell outside the exceptions. The court declined to order erasure and remitted the case back to the tribunal for reconsideration. And if the tribunal again decides a twelve-month suspension is enough? In that case the suspended sentence will have run out before it ends.

Legal

Covid-19

Chambers is adopting a “business as usual” approach during this difficult period but all members of chambers, clerks and administration will be operating safely and efficiently from home save for court appearances.